Breach of Confidence

1. Information must be specific

a. Something that an injunction can be specifically applied towards (Ocular)
b. Something that the D will know what he is charged about (Ocular Sciences)
2. Information must be confidential
a. Information must be confidential
i. Not public info/common knowledge (Greene MR in Saltman)
ii. Cannot be generally accessible (Guardian Newspaper)
iii. Limited publication (Can still retain confidential AFL)
Test: Must not be so generally accessible such that it has
entered in the public domain
a. Is it known to an ever-widening group? Cf.
transitory/brief mention
b. Lacks Accountability? does not destroy
confidentiality
b. Must have the necessary quality of confidence
i. Commercial
Human skill and ingenuity (Saltman); or
Someone is willing to pay money for it (Douglas)
ii. Personal
Test: disclosure = highly offensive to a RP/Will harm that
persons dignity? (Lenah)
E.g Info told within marriage (Agryll)
Sexual activity in owns home privacy (Giller)
3. Circumstances importing duty no requirement for pre-existing r/s
a. Circumstances where it goes without saying:
b. Test: Knows/ought to know that the information was imparted in confidence
(Coco)
c. Can be self-evident from some circumstances:
i. Relationship of trust and confidence
ii. Surreptitiously acquired info
iii. 3P
4. Unauthorised use
a. Types:
i. Unauthorised use (actual or intended)
ii. Beyond scope (EmTech)
b. Detriment is irrelevant (Smith Kline)
c. Intention irrelevant (Talbot)
d. Reverse Engineering of a product in market not a breach (Saltman)
e. Similarity per se not enough to prove misue (Coco) limited ways of
creating it?
5. Defences
a. Public Interest
i. Not settled but outweighs the need to retain its confidentiality?
(Smith Kline)
ii. Should be taken restrictively
 b. Inquity (AFL) Elements:
i. Proposed wrongdoing
ii. Affects the welfare of the population as a whole/character pf public
importance
iii. 3P is trying to protect the issue from being redressed
Not sufficient where:
a. Merely tested for being positive not 100% confirm
b. Used to create an interesting story rather than redress
6. Remedy
a. Mainly injunction
b. Possibly aggravated damages as well (Giller)

Fiduciary Relationship

1. Accepted/Non-accepted categories
2. Scope
3. Breach
a. Conflicts Rule
i. Duty-duty
ii. Duty-interest
b. Profits Rule
4. Defences
a. Informed Consent
5. Third Party Liability
6. Remedies

Personal Remedies

1. Specific Performance
2. Injunction and Specific Delivery
3. Damages in lieu of injunction/SP

4. Account of Profits

5. Equitable Compensation

6. Equitable Rescission
7. Declarations

8. CL Remedies
a. Exemplary Damages
b. Aggravated Damages
Equitable Proprietary Remedies

1. Remedies
a. Constructive trust
b. Equitable Lien
2. Preconditions
a. Misappropriation of opportunity by a fiduciary
b. Fiduciary Receipt of bribes and secret commissions
3. Bankruptcy Considerations
a. Secured Debts v Unsecured Debts
4. Tracing process of identifying a new asset in sub for an old asset (Foskett)
a. Right to CT, either
i. Pre-existing Proprietary Rights (arising from
BOFD/trust/misappropriation/bribe)
b. Able to identify the property in the hands of D
i. Property is Ascertainable (mixing does not prevent this)
ii. Property not dissipated
E.g. pay off unsecured debts/improves asset
But note: a personal remedy in respect of misappropriation
still exists
iii. If 3P, then must not be BFPfVWON
c. Scenarios
i. D substitutes asset: Solve by
F holds substitute asset subject to Claimants equitable rights
(Foskett)
Applies also to 3P recipient with notice (Barnes first limb) +
where 3P exchanges asset for some new asset
ii. D mix with own property: Situations
F/3P who owes duty as constructive trustee pursuant to
Barnes (P can elect a CT or lien) (Foskett); OR
a. Mixing by Improvement?
i. Intangible/tangible property?
1. Proportionate claim of equitable
ownership (i.e. prop CT) OR
2. An appropriate money remedy secured
by an equitable lien
b. Mixing by Acquisition?
i. Scott v Scott (Tangible)
1. Proportionate CT as an alternative
2. Equitable lien for the increase in value
for the house in the same proportion as
the trust has contributed
ii. Foskett (Intangible)
c. Mixing into a bundle of indistinguishables?
i. Brady v Stephenson
1. Assert ownership of a proportionate
collection of the things in the bundle
 2. Apply Re Hallett can seek equitable
lien over indistinguishable mass to
secure an appropriate money remedy OR
3. Can also argue that investments were of
Claimants shares
Innocent 3P?
a. Ps equitable title defeats Vs title (Diplock)
b. E.g. AG v Reid
iii. D takes property from 2 innocent parties, mixes and purchases asset
iv. D transfers property to 3P; 3P mixes it with own/received mixed
D transfers property to 3P (no mix)
a. Can assert CT if:
i. If already got CT over the property when go to
3P AND
ii. Identifiable in someones hand then CT
applies
1. i.e. if Volunteer and no mixing: V holds
on trust for rightful owner
2. However note BFPVFWON
b. The 3P may also be liable under KR only personal
remedy in the form of equitable compensation is
available under BvA for the running down of the value
of the asset
What if they mix with their own property?
a. Innocent Volunteers (Diplock)
i. Tracing is available for 3P volunteers
ii. If mixed into bank accounts (see below use Re
French)
iii. Where $ mixed to buy new assets, beneficiary
entitled to a charge to secure repayment (i.e. in
proportion of any contributions)
iv. Upgrade/alteration/pay off debts no right to
trace as dissipated
5. Bank Accounts
a. First in, first out (Claytons Case) rejected in many cases
i. Unfair for:
Accounts of mixed $s of multiple beneficiaries; OR
Where moneys are from multiple trust funds
b. If insufficient funds, presumption trustee withdraws his own first (Re Hallett)
c. Pari Passu Rule (Re French Caledonia Travel)
i. Beneficiaries share proportionately where $s are from multiple funds
ii. Where mixing involves innocent 3P
Rationale: If the first transaction between the P and D was a cause of the second
transaction between the D and the third party, then the plaintiff should be entitled to
claim a share of the benefit received by the D from the second transaction, in
proportion with the contributions of the other causes
d. Lowest Intermediate Balance Rule
i. Applies if balance of account fluctuates over time
 ii. NO APPLY if: SINGLE deposit + withdrawal
Use Re Hallett instead; or
Re French if mixing involves innocent 3P

Equitable Assignment
- See table